How SOPA Will Be (Ab)Used

from the in-case-you-were-wondering dept

Proponents of the Stop Online Privacy Act (SOPA) and its Senate counterpart PROTECT-IP often affect incredulity that anyone would "defend piracy" by describing their valiant attempts to stamp out "rogue sites" as a threat to free speech or innovation. Recording Industry Association of America head Cary Sherman, for instance, recently insisted to The New York Times that the bills are "specifically designed to focus on the worst of the worst sites whose model is predicated on theft." This would be more convincing if the content industries weren't so clearly continuing their long, proud tradition of making aggressive and overbroad copyright claims that would impede speech and innovation.

In the 80s, Universal Studios famously sued Sony to block the sale of Betamax VCRs, which could be used to "facilitate" the infringement of copyrights in shows and movies aired on broadcast television. Blocking VCR sales, of course, might also have strengthened the market position of the DiscoVision laserdisc system being developed by MCA, Universal's parent company. The Supreme Court eventually vindicated Sony, but Universal did manage to persuade one lower court to rule in their favor. If SOPA's blocking provisions could be implemented in the physical world, every VCR (and maybe every Sony product) would have stopped working after that first favorable ruling, until Sony could meet the burden of proving its innocence in a U.S. court. Of course, under a rule like that, consumers might have been wary of buying a VCR in the first place.

And today? It's the Universal Music Group heading to court, after using a dubious copyright claim to take down an embarrassing video in which pop stars sing the praises of the site Megaupload. Megaupload, you see, is a file locker site, and the recording industry has made it crystal clear that it's at the top of the industry's list of "rogue sites" that should be targeted under SOPA. Indeed, when the content industries talk about why SOPA is needed, they invariably cite file lockers generally as the very epitome of a "rogue site." It is, therefore, a little awkward to have their own artists pointing out the obvious: File lockers can be used by pirates to share infringing files, but also host an enormous amount of perfectly legitimate content, uploaded by users who would be effectively silenced (and cut off from their own files) if the entire site were blocked. Similarly, the recording industry thinks copyright gives it the power to veto cloud-based music storage services, which serve as a kind of virtual hard drive from which users can remotely access and play their own legally purchased and uploaded music. It's a great convenience for consumers—but the labels think they can use copyright to stop it unless they're paid a cut.

We might also look to some of the seizures of U.S.-registered sites by Immigration and Customs Enforcement. The sports site Rojadirecta—registered in the U.S. but based in Spain—was seized on the theory that linking to infringing video of sporting events hosted elsewhere on the Internet is enough to trigger forfeiture, even though Spanish courts have repeatedly ruled that such conduct (however shady it might seem) is legal in Spain. As lawyers for the government argued, invoking the very same statute that would provide the basis for SOPA censorship:

"[A]ny property used ... in any manner or part to commit or facilitate the commission of an offense [such as criminal copyright infringement]" is subject to forfeiture.... Moreover, it is "[i]rrelevant whether the property's role in the crime is integral, essential or indispensable,"... and a single incident of facilitating criminal activity is sufficient to trigger forfeiture.

The government further notes that they're not directly charging Rojadirecta with criminal infringement (nor indeed do they ever have to bring such charges), which means no need to meet that pesky "beyond reasonable doubt" standard—or even "probable cause". All the government needs for forfeiture, they assert, is a "reasonable belief" that a domain is being used to "facilitate" criminal infringement. This despite the fact that, in the context of obscenity laws, the Supreme Court has held that "Mere probable cause to believe a violation has transpired is not adequate to remove books or film from circulation." Now, Rojadirecta's business model is certainly shady, and maybe they're even guilty of criminal infringement. But are we really comfortable with an entire domain, including vibrant discussion forums that clearly enable protected, non-infringing speech, being blocked pursuant to a "reasonable belief" standard, forcing the company to hire U.S. lawyers and prove their innocence to win the right to speak to U.S. users?

Then there's the case of Dajaz1.com, a hip hop blog seized for over a year by the government for hosting infringing music files. Except it turned out that those files had actually been provided by PR firms, working for the music labels, who hoped blogs like Dajaz1 would circulate them to create buzz for up-and-coming artists. Oops!

As legal scholar Jason Mazzone has amply documented, the use of dubious copyright claims to chill legitimate speech is depressingly common. The voting machine manufacturer Diebold has tried to use copyright to shut down whistleblower sites that published internal e-mails highlighting security vulnerabilities in software that could determine the outcome of elections. The Church of Scientology has similarly invoked copyright to stifle criticism. In Russia, political opposition groups are routinely raided under the pretext of searching for copyrighted software. Research suggests that most copyright takedown claims to search engines like Google are issued by companies targeting their competitors, and that nearly a third of takedown notices under the Digital Millennium Copyright Act lack a clear basis.

I could easily fill a dozen long blog posts with examples, but let's cut to the chase. Major movie studios and music labels draw a lot of water in D.C.: the fact that a bill as massively unpopular as SOPA is even being seriously considered, let alone likely to pass, is proof of that. They will effectively control which foreign domains the Justice Department chooses to block directly, and shop around for friendly judges amenable to rubber-stamping orders in civil litigation that require payment providers and ad networks to cut off disfavored sites. The likely targets are their competitors, whether the copyright claims are valid or not. Sites like YouTube that provide entertaining user-generated videos are one less reason to pony up for the next lackluster Adam Sandler movie. Sites that give musicians a way to gain exposure to fans and market their albums without giving a cut to the increasingly redundant middleman threaten to make the labels obsolete. And if open platforms invariably end up hosting some infringing content uploaded by users? Well, that's as good a pretext as any for shutting down the competition.

Why do critics of SOPA worry that the bill will threaten legitimate speech and innovation? Because its supporters have spent three decades providing overwhelming justification for that fear at every opportunity. If I may end by making a bit of "fair use" of the genius of former Smiths' front-man Morrisey:

He was a sweet and tender hooligan, hooligan

He said that he'd never, never do it again

And of course he won't, oh, not until the next time

Empowered with the ability to threaten blocking of entire domains, I'd rather not see what the copyright hooligans do "next time."

H fundamental thing.

It won't work, because to do so, it has to enforce not just one DNS provider, but all of them. And if you think the Chinese government will allow the US to censor whatever websites it wants up, then the US will have another thing coming.

Enjoy those imaginary PC components, cause China can just stop making them for a week and watch as America implodes.

If SOPA's blocking provisions could be implemented in the physical world, every VCR (and maybe every Sony product) would have stopped working after that first favorable ruling, until Sony could meet the burden of proving its innocence in a U.S. court.

There are a lot of people who would ask why that is a bad thing. (Yes, in theory it's a bad thing, but hatred for all things Sony runs very deep with some people).

Because so much of what is said in numerous articles on your site refer to the Universal v. Sony case, and because I know that you do like to look at issues from both sides,
you may find it useful to read what is easily the most comprehensive discussion of the case I have ever read. It can be found at:

The point being made is that Sony was wrongly decided, but did arrive at the proper result and could easily have done so using existing legal theories that have been around for centuries. This is a very important point, because as subsequent events have demonstrated the case has been generally consigned to the backwaters of Supreme Court jurisprudence. Instead of strictly applying that case, courts have turned away from it and use as their current focus general principles of tort law.

The Congress and the Senate seem to be happy to ignore all the evidence that the MAFIAA has abused copyright and will abuse these laws if passed. The SOPA mark up was simply shocking, some sort of horror movie but for real.

In the end, it might be the legal bribery (also called lobby) that's the real issue. It's preventing the much needed changes the US laws and politics need. The president is worth nill. Look at his crew, it basically hasn't changed from the Bush era. Obama is just a pupped unalbe to break the wall that was built around the corporation and the rich. It's the 1% vs 99% thing. And it's gonna blow up at some point, regardless of what's passed into law.

Re:

"There are a lot of people who would ask why that is a bad thing. (Yes, in theory it's a bad thing, but hatred for all things Sony runs very deep with some people)."

Easy. The way it happened, Sony's own greed and incompetence (i.e. enforcing expensive proprietary licences) allowed the more open VHS standard to become prolific and the entire home market to really take off. They faced their penalties in the marketplace, not the courts, as it should be. Meanwhile, both VHS and subsequent audio and video distribution formats were able to depend on the ruling to protect themselves from overbearing copyright enforcers.

Without the Sony ruling, everything from VHS to CD-Rs to MP3 players to USB pendrives could potentially have been deemed illegal. There could also potentially have been a chilling effect, whereby companies may not have funded research into new recordable media types for fear of their ultimate product being found illegal. The marketplace would have been a much different, and IMHO much inferior, place without Sony winning that case.

File lockers

Why stop at file lockers - what about the equivalent physical product?

I'm thinking of CD racks - after all consumers have been using CD racks for years to store their music and the labels have never been paid a penny!

This has to stop. There should e a tax on CD racks to compensate for the outrageous losses caused by consumers storing their music in these rogue furniture items! Or maybe they should just be shut down.

Re: H fundamental thing.

Maybe these people should have been forced to play Dungeons & Dragons (or some other role playing game) when they were younger. There is nothing as "exciting" as watching a handful of creative players (especially if they have a "rules lawyer" or two) completely break your campaign by using the rules in way you never even thought of.

And, as anyone who has ever played Magic:the Gathering knows, it's not just what a card (law) can do, but also how it can be used in conjunction with other cards (laws) to do all sorts of things (some of which totally break the game).

"Except it turned out that those files had actually been provided by PR firms, working for the music labels, who hoped blogs like Dajaz1 would circulate them to create buzz for up-and-coming artists."

I guess Dajaz1 hasn't been circulating sample music files to create buzz etc. for the last year. Mission: accomplished.

"And if open platforms invariably end up hosting some infringing content uploaded by users? Well, that's as good a pretext as any for shutting down the competition."

Seems to me that users don't have to upload the content. Hosting (or even linking to) licensed content provided by the studios or their PR firms for advertising purposes is apparently enough pretext to shut down a site.

steal this film

I just finished watching the free movie, "Steal This Film", made in 2006, which talks about about the Pirate Bay and copyright in general. They point out that the only way to stop sites like the Pirate Bay, and downloading, is to "break" the internet. It seems, 5 years later, the US is trying to do just that.

Re:

I'd imagine a site doing the same with movie trailers would hit the MAFIAA "rouge site" top 10 in a month. Never mind that trailers are created exclusively for advertisement, they still carry a copyright that has to be protected at all cost--just like the cushy salaries of the legacy advertizing execs.

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I’m Confused.
Maybe someone here can clarify this for me.
The recording and movies and TV moguls and their lackeys (Miaa,Riaa,Ascap ,politicians, etc) have sued children, shut down websites ,violated peoples first and fourth amendment rights, denied people due process lied to the American people tried to stifle creativity and innovation that they don’t own the rights to, screwed artist out of their money. committed fraud created reality shows and I don’t know what else in the name of profits that they claim they don’t make!
That about sum it up?
Then my question is…
Who are the pirates again?

Why do critics of SOPA worry that the bill will threaten legitimate speech and innovation? Because its supporters have spent three decades providing overwhelming justification for that fear at every opportunity. If I may end by making a bit of "fair use" of the genius of former Smiths' front-man Morrisey:

He was a sweet and tender hooligan, hooligan

He said that he'd never, never do it again

And of course he won't, oh, not until the next time

Empowered with the ability to threaten blocking of entire domains, I'd rather not see what the copyright hooligans do "next time."

I enjoyed the piece, but it's totally one-sided. Is it too much to ask to have a scintilla of balance on Techdirt? Not one word about the pirates who for the past three decades have pushed things to ridiculous levels, bringing about this response on themselves. Not one word about all of the times copyright law worked exactly as it's supposed to. Just a laser focus on what you consider to be the worst of the worst. No effort to put it into perspective or to tell the other side of the story. It really worries me that you guys don't even acknowledge that the lawbreakers are the "file sharers" as you so lovingly call them. All conversations about the response to piracy should start with recognition of that simple fact. You guys (the pirates among you) are the hooligans.

Nice Smiths quote at the end (though you did spell Morrissey's name wrong). "And in the midst of life we are in debt, et cetera."

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I don't think it's a 100% certain prediction. It's simply "look at what happened before, and there's no reason to think they won't do it again".

So far, every time the entertainment industry has tried to block a new technology rather than adapting to it, that has led to unintended consequences up until the time they decided to adapt. When they did adapt, they found new markets and made more money. When they didn't, they caused damage to free speech, competition and consumer rights. On top of that, vaguely written laws created by people who really don't understand the issues at hand have a habit of causing great amounts of collateral damage that really should have been foreseen, had the lawmakers known what the hell they were really writing into law.

Let's just say that if this law comes to pass and even a fraction of the damage comes to pass, "we told you so" won't be half of the comments coming out of people who are clued into the technology. The pirates, meanwhile, will probably continue as they always have, both before and after the creation of the internet.

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"I enjoyed the piece, but it's totally one-sided. Is it too much to ask to have a scintilla of balance on Techdirt? "

If by balance you mean both sides present their cases backed up with facts, truth, honesty, etc, then that’s not too much at all. Unfortunately the pro-SOPA arguments seem to be full of faith-based theories, debunked stats, intellectual dishonesty, ignorance of history and downright lies. A bit of balance would be quite a nice change.

"It really worries me that you guys don't even acknowledge that the lawbreakers are the "file sharers" as you so lovingly call them. All conversations about the response to piracy should start with recognition of that simple fact. "

There’s some of that intellectual dishonesty. This is not about stopping piracy, which this legislation will have little effect on, but instead is all about a desperate attempt by legacy industries to claw back power and influence that technological advances have taken away.

Re:

The pirates of the last three decades? Nice try but widespread adoption of high speed cable and ADSL at home barely is decade along, 15 years at best.

Thirty years ago even big business was living with such advanced and speedy stuff like 8 and 16bps modems outside of their heavy iron rooms. (Mainframes, as I know you're not much of a geek, well not any kind.)

I know, I was there. Working in the folks that provided that kind of service back then called Telcos. Hell, to afford 43bps you paid for the nose and unless you were government, the military or, curiously enough, the film and recording industries you didn't even think of your very own T-1.

So let's drop 20 years off your claim of piracy.

That's the astonishing thing about the RIAA/MPAA is that they can't even get their time lines right.

If it's cassette recordings and video home recordings you're going after for "piracy" need I remind you that sales of recordings and box office receipts soared as the boomers (me among them) continued to buy records and see movies at an increasing rate.

Cassettes were nice but only until the jammed or unraveled in a useless mess of magnetic tape in the car player or home recorder. VHS tapes have a really bad shelf life and the picture quality is akin to an old Kodak Brownie, worse if you did a tape to tape copy.

In short, didn't hurt a bit for the RIAA or MPAA in spite of all their whinging and public hand wringing about it.

And as for copyright it's purpose was never to provide mulch-generational income for the creator, more likely the corporate entity that wouldn't publish, record or film their work till said copyright was signed over the said corporate entities. Particularly if you were an unknown.

Look back at the Statue of Ann, the first copyright legislation in the English speaking world. Right up there near the top of the preamble. It was to encourage "education". And what's education consist of, in large part? Sharing knowledge. SHARING. Not hiding it. The same, incidentally applies to patents.

We humans SHARE things, we share knowledge, swap stories, share books, videos, now mp3s and wmv's. That's what we do. And at the end of the day it mostly works in favour of the creator who people otherwise might never heard of. So they sell another book, another CD or another movie DVD or whatever. Like magnetic tape, stuff stored on a hard drive or even in the cloud is transient. You can't hold it in your hand. And that's something else we humans like, is to hold things in our hands. One very good reason that I continue to think the death of printed books is grossly exaggerated. A Kindle's nice on a plane but it's hell to lay down by a fire and try to share the book with the person you love most in your life compared to a book.

So no. Because I privately share a file now and then doesn't make me a hooligan. It makes me human. (By the way the few I've shared whether on file lockers in the cloud or as email attachments all of it has resulted in sales for the creator I "filched" it from.

The ONLY hooligans in this discussion are those who want to place American (and the world's) culture(s) behind the doors of walled gardens and make what belongs to us all something we have to beg for by way of inflated rents (pricing) using and extending copyright far, far beyond its original purpose as clearly stated in the first ever copyright act. (And the American adaptation of it.)

And no, SOPA won't work if it depends on DNS filtering exclusively. Not when the rest of the world isn't going along with it. The chances of that happening are about the same as a snowball's chance in hell. Maybe less.

Even if it does pass and is held constitutional.

What it will accomplish, though, is the darkening of the light that was once the most admired country in the world, one seen as adopting and living by the very principles and doctrines it's founders intentioned and wrote into it's constitution. One that took those principles to the rest of the world and convinced them to adopt a number of them themselves including the state they rebelled against.

Now the state that has imprisonment without trial in what's widely seen around the world as a glorified concentration camp (Gitmo), that imprisons per capita more of it's people than any other developed country, one that executes more of them per capita that the rest of the developed world combined and one that, at the end of a gun, tries to export the very ideals it once persuaded us to adopt. Ironically, in some cases, even that exporting has brought about more open countries that that country than that country itself is becoming.

If you hadn't guessed that's the United States of America. A country I live next door to, visit frequently and whose people I still find as some of the best this planet has to offer. A country I still admire and whose political freedoms, particularly till now, free speech, I've envied even though Canada's comes the closest to it than anywhere else on the planet.

Now comes SOPA and PIPA.

I guess I'm supposed to be the silent neighbour who allows horrible things to happen across the fence cause it's "none of my business".

Can't do that. What happens to freedom and liberty, due process and the rule of law in the United States will quickly happen to the rest of the planet as we watch some of you betray everything your founders stood for.

So that's why this neighbour is so interested in what's happening south of the 49th. First because I can't stand to see that light dim and start to go out and secondly because it is my business to protest in what small way I can a bill that I see doing that.

The hooligans, Joe, are the supporters of these bills. Not the opponents. They're the congress critters who won't listen to any other point of view than the one with the biggest donations. In short, the one who'll pay the most for their vote.

Julian Sanchez

Julian: "Then there's the case of Dajaz1.com, a hip hop blog seized for over a year by the government for hosting infringing music files. Except it turned out that those files had actually been provided by PR firms, working for the music labels, who hoped blogs like Dajaz1 would circulate them to create buzz for up-and-coming artists. Oops!"

No "Oops!" here. They're just setting the precedent for how SOPA/PIPA will attempt to silence anything viewed as a threat to their business model.

Re: Re:

Re:

"all of the times copyright law worked exactly as it's supposed to" [citation needed]

Please show examples of copyright 'promoting the progress' rather than 'enriching the gatekeepers' and perhaps I'll believe you.

Contrary to popular shilief (Shill Belief - patent pending... don't ask how I'm patenting a word, I could tell you, but the method is a trade secret and I would have to kill you afterward...) the purpose of copyright is not to enrich the gatekeepers at the expense of the artists and the general public.... I know that's all it's done for the last 50 years, but that was not the INTENT of the law, only how it's been abused by the legal profession over the years for their own benefit (two sets of lawyers get to benefit from every copyright infringement case.... it's almost like the law is being used as job security by lawyers....)

Re: Re:

"I don't think it's a 100% certain prediction. It's simply "look at what happened before, and there's no reason to think they won't do it again"."

Yet it is entirely one sided.

Do you honestly think that websites are going to continue to accept user submitted content without checking it? Do you think that they will stay with their same business models that will lead to their demise in the courts, or do you think they will adapt? Perhaps both, those that are too stupid will die, and new, improved business models will come along that actually work, are legal, and still allow for a wide range of user content.

If there is one thing the internet has proven, it adapts. It's totally silly to assume that the internet, faced with this new law, will just continue down the dead end until it runs into the wall and blows up. That isn't logical at all.

Re: Re: I am a pirate

Re: Re: Re: Re:

That's the dilemma. The very thing Joe claims is under attack is thriving if the profits of RIAA and MPAA companies are anything to judge by. Certainly Bollywood is thriving, even with ex-pats "pirating hither and yon" because they can't get the latest from Bollywood yet. Strangely they also flock to theatres to see them when the movies arrive and watch them on Punjabi TV channels. Movies are still a social event for the ex-pats something they've become less and less of in North America and the EU. The ex-pats also buy the DVDs and CDs when they arrive in the country they now live in in large numbers as well.

All of which changes nothing about the overboard and over the top enforcement of copyright laws contained in SOPA and PIPA for the profit of a few companies who are still, as it turns out, raking great gobs of money in despite their whinging.

So one small reminder to Joe, that if the international copyright system as set up under the Berne Convention then why is the Congress trying to fix something that isn't broken? It makes no sense.

Re: Re: Re:

Poor people can't copy the design for a shelter with copyrights.

Poor people can't busk in the streets because collection agencies charge the government and the government pass laws forbidding anyone from playing "illegal music" on the streets, so they have no means to earn a living.

There are other examples too.

Copyright is a granted monopoly and like others it has all its inherited problems which means it affects how people can make a living and their quality of life.

End copyrights and people will have a fair shot at living not only that they could even thrive again.

Re: Re: Re:

"Do you honestly think that websites are going to continue to accept user submitted content without checking it?"

No. But, since those who already do so are the ones being attacked as "rogue sites", and it's impossible to effectively and accurately pre-screen the level of traffic that larger sites get, what is the end game? The killing off of sites that accept user content - including those of working artists who don't wish to be part of the corporate status quo - is surely the end result? I haven't heard a realistic argument against this other than "trust us, the law won't be applied like that", which is frankly bullshit given the track record on other laws.

"If there is one thing the internet has proven, it adapts. It's totally silly to assume that the internet, faced with this new law, will just continue down the dead end until it runs into the wall and blows up."

Indeed. Which means that the pirates will adapt to methods that cannot be effectively blocked by the new rules, as they have done before, and the rest of the internet - including legitimate competition for the legacy industries - suffer.